State v. Hatchell, A167972

CourtCourt of Appeals of Oregon
Writing for the CourtORTEGA, P. J.
Citation322 Or.App. 309
PartiesSTATE OF OREGON, Plaintiff-Respondent, v. JUSTIN DOUGLAS HATCHELL, Defendant-Appellant.
Docket NumberA167972,A167973,A167974
Decision Date12 October 2022

322 Or.App. 309

STATE OF OREGON, Plaintiff-Respondent,


A167972, A167973, A167974

Court of Appeals of Oregon

October 12, 2022

Submitted on remand August 5, 2022.

Multnomah County Circuit Court 17CR27612, 17CR56799, 17CR56804; Kenneth R. Walker, Judge

On remand from the Oregon Supreme Court, State v. Hatchell, 369 Or 855, 512 P.3d 446 (2022).

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anne Fujita Munsey, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jonathan N. Schildt, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.


[322 Or.App. 310] ORTEGA, P. J.


[322 Or.App. 311] This case is before us on remand from the Supreme Court. In a consolidated appeal, defendant challenged judgments of conviction for one count each of second-degree assault constituting domestic violence and coercion constituting domestic violence (Case No. 17CR27612); one count of tampering with a witness (Case No. 17CR56799); and two counts of first-degree rape constituting domestic violence, seven counts of fourth-degree assault constituting domestic violence, seven counts of strangulation constituting domestic violence, and two counts of coercion constituting domestic violence (Case No. 17CR56804). We affirmed defendant's convictions in a per curiam opinion. State v. Hatchell, 309 Or.App. 348, 481 P.3d 413 (2021), vac'd and rem'd, 369 Or. 855, 512 P.3d 446 (2022) (Hatchell I). The Supreme Court allowed review, vacated our opinion, and remanded the case to us for reconsideration in light of State v. Owen, 369 Or. 288, 505 P.3d 953 (2022), and State v. McKinney/Sniffer, 369 Or. 325, 505 P.3d 946 (2022). State v. Hatchell, 369 Or. 855, 512 P.3d 446 (2022) (Hatchell II).

We first note that the Supreme Court's remand only implicates defendant's assignments of error three through five. Thus, with respect to defendant's assignments of error one, two, six, and seven, we readopt that aspect of our prior opinion and reject those assignments of error.[1] That conclusion disposes of defendant's challenges to his convictions in Case No. 17CR56799 and Case No. 17CR56804; thus, we affirm the convictions in those cases.

In assignments of error three through five, defendant argued that the trial court erred in its jury instruction for the second-degree assault count in Case No. 17CR27612. Defendant argued that the trial court was required to


[322 Or.App. 312] instruct the jury on a culpable mental state with respect to the serious physical injury element of that crime, and that the court erred in not giving his two proposed jury instructions which would have told the jury to apply either an intentionally or knowingly mental state to that element. Defendant also argued on appeal that, if either the intentionally or knowingly mental state did not apply, then the trial court plainly erred in failing to instruct the jury that the mental state of criminal negligence applied to the injury element. In our original opinion, we rejected defendant's arguments without discussion, because they were foreclosed by the Supreme Court's opinion in State v. Barnes, 329 Or. 327, 986 P.2d 1160 (1999), overruled in part, State v. Owen, 369 Or. 288, 505 P.3d 953 (2022). In light of the Supreme Court's action in Owen, overruling Barnes in part, we conclude on remand that the trial court plainly erred in failing to instruct the jury that the mental state of criminal negligence applied to the serious physical injury element of the second-degree assault count, that the error was not harmless, and that it is appropriate to exercise our discretion to correct that error. Accordingly, we reverse and remand the second-degree assault conviction in Case No. 17CR27612.

Additionally, because the three cases were consolidated for trial and appeal, and the trial court sentenced defendant on all three cases together, we remand all three cases for resentencing. State v. Sheikh-Nur, 285 Or.App. 529, 540, 398 P.3d 472, rev den, 361 Or. 886 (2017) (where multiple cases were tried together, error required resentencing on all cases); see also ORS 138.257(4)(a)(A) ("The appellate court shall remand the case to the trial court *** [i]f the appellate court, in a case involving multiple convictions, reverses at least one conviction and affirms at least one other conviction.").

In reviewing whether a trial court erred in refusing to give a requested jury instruction, we "in part determine[] whether the record, viewed in the light most favorable to the proponent of the instruction, supported giving the instruction." Owen, 369 Or at 290. In addition, to determine whether instructional error was harmless, we "consider[] in part the context of the evidence and record at trial, including the parties' theories of the case." Id. (internal quotation


[322 Or.App. 313] marks omitted). With those standards in mind, we recount the relevant portions of the record.

In March 2017, defendant came home to find that K had packed her belongings and was intending to leave their shared household. Defendant became angry and started hitting K "all over the place," threw her to the ground, and kicked her repeatedly in the face. K was in the fetal position asking defendant to stop. She was bleeding from the face, and at one point she felt that her face "broke" and, at the end, she could not see out of one eye. K also said that it was defendant's shin or the front of his leg that caused her facial injuries. At trial, K did not know if defendant was wearing shoes when he kicked her, but thought he probably was.

Defendant then would not let K leave their basement bedroom, because he did not want anyone to see her. After five or six days, K convinced defendant that she could cover up the injury with makeup and a story so that she could go to work. Once at work, K was sent home because of her appearance, and she went to a friend's house. At that point, K's face was black, blue, yellow and swollen, her eye was bloodshot, and she had a big purple mark behind her ear. K's friend took her to the emergency room, and she was diagnosed with a right orbital blowout fracture, which is multiple fractures around the eye socket such that part of the orbital contents protrude down, and facial contusions. K required facial reconstruction surgery, which included the placement of two metal plates in her face. At the time of trial, in February 2018, K still did not have feeling on the right side of her face or inside her mouth.

As relevant here, defendant was indicted for second-degree assault, constituting domestic violence, based on his "unlawfully and...

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